United States v. Williams

23 M.J. 792, 1987 CMR LEXIS 56
U.S. Army Court of Military Review·Decided January 30, 1987·No. CM 448278·Published·Cited by 4 cases

Opinion

OPINION OF THE COURT

RABY, Senior Judge:

Appellant was convicted of rape of a female under the age of sixteen in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (1982) [hereinafter cited as UCMJ]. The victim, S.R.B., was appellant’s step-daughter and was six years old at the time of the incident.1 Appellant was sentenced to a dishonorable discharge, confinement at hard labor for seven years and reduction to the grade of Private E-l. The convening authority approved the sentence.

Appellant asserts that the evidence is insufficient to sustain the finding of guilty of rape. We find that the evidence is insufficient to establish the penetration of the victim by the appellant; however, we are convinced beyond a reasonable doubt that the evidence is sufficient to establish appellant’s attempted rape of the victim. Accordingly, we will take appropriate corrective action.

Appellant also asserts that the military judge erred by sustaining the trial counsel’s objection to the testimony of Ms. W, a defense witness, that her blood-type was A positive, on the ground that it was impermissible hearsay. We find this issue to be one of first impression. Examining the evidence in question, we grant that it has characteristics similar to other information pertaining to the personal history of the declarant and is closer in kind to a statement concerning the declarant’s general medical condition2 than to a medical [794]*794diagnosis. However, we conclude that the only hearsay exception which might reasonably have been applicable is the residual hearsay exception. Manual for Courts-Martial, United States, 1984 [hereinafter cited as MCM, 1984], Mil.R.Evid. 803(24). Assuming arguendo that the witness could testify concerning her own blood type as an exception under Mil.R.Evid. 803(24), the military judge nevertheless has a great deal of discretion in determining whether to admit such evidence under the residual hearsay exception. The discretionary latitude vested in the military judge acquires even greater significance in view of the fact that “[m]any commentators and courts agree that ... [the Residual Hearsay] Rule’s history and construction indicate that it should be narrowly construed.” S. Saltzburg, L. Schinasi and D. Schleuter, Military Rules of Evidence Manual 654 (2d ed. 1986). Accordingly, we will not overturn the military judge’s ruling excluding the blood-type evidence in the absence of a clear abuse of discretion.3,4 United States v. Crayton, 17 M.J. 932, 934 (A.F.C. M.R.), petition denied, 19 M.J. 57 (C.M.A. 1984); see United States v. Whalen, 15 M.J. 872, 878 (A.C.M.R.1983); see also United States v. White, 17 M.J. 953, 956 n. 5 (A.F.C.M.R.1984); United States v. Henderson, 18 M.J. 745 (A.F.C.M.R.1984); United States v. Dorian, 803 F.2d 1439 (8th Cir.1986); United States v. Renville, 779 F.2d 430, 439 (8th Cir.1985); United States v. Cree, 778 F.2d 474, 477 (8th Cir. 1985); United States v. Poston, 727 F.2d 734, 739 (8th Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); Branca v. Security Benefit Life Insurance Co., 773 F.2d 1158 (11th Cir.1985). Since appellant has failed to establish that such an abuse occurred this assignment of error is without merit.

Moreover, assuming arguendo that the military judge abused his discretion by excluding the lay witness’ testimony concerning her blood type, we are convinced that such error was harmless in view of our corrective action in reducing the charge to one of attempted rape. In arriving at this determination, we have utilized the four-pronged test of United States v. Weeks, 20 M.J. 22, 25 (C.M.A.1985).5

Appellant further asserts that the military judge erred by allowing a defense witness to testify on cross-examination, over defense counsel’s objection, about the victim’s truthfulness.6 Sergeant (SGT) W, who worked for the Trial Defense Service, was present during the two interviews of the victim which had been conducted by appellant’s defense counsel. The interviews were of one hour’s and one half-hour’s duration, respectively. The record of trial reflects no other occasions when SGT W had an opportunity to observe the victim prior to trial. On cross-examination, SGT W testified regarding certain minor inconsistencies between the victim’s trial [795]*795testimony and the statements the victim had made to defense counsel during the two prior interviews. The military judge also allowed SGT W to express her opinion as to the victim’s truthfulness. In support of his contention that this was error, appellant cites United States v. Perner, 14 M.J. 181 (C.M.A.1982) (holding that a psychiatric technician’s three encounters with the witness did not provide a sufficient basis for him to form a reliable opinion as to her character for truth and veracity). However, Pemer involved an interpretation of paragraphs 138f and 153(b)(2)(a), Manual for Courts-Martial, United States, 1969 (Rev. ed.). Paragraph 138f(l) pertinently provides that:

When proof of the character of a person is admissible, the opinion of a witness as to that person’s character may be received in evidence if it is shown that the witness has such acquaintance or relationship with the person so as to qualify him to form a reliable opinion in this respect.
(Emphasis supplied.)

Military Rule of Evidence 608(a) has no similar condition predicate for the admissibility of opinion or reputation evidence concerning truthfulness. Such evidence may be offered, after the witness’ character for truthfulness has been attacked, by opinion or reputation evidence or otherwise. Mil.R. Evid. 608(a)(2). Thus, the military judge is vested with “the widest possible discretion in deciding whether supportive character evidence should be allowed.” United States v. Ryan, 21 M.J. 627, 630 n. 4 (A.C. M.R.1985) (quoting United States v. Medical Therapy Sciences, Inc., 583 F.2d 36, 41 n. 6 (2d Cir.1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979)).

Military Rule of Evidence 608(a) “is taken verbatim” from Federal Rule of Evidence [Fed.R.Evid.] 608(a). M.C.M., 1984, Analysis of Mil.R.Evid. 608(a), App. 22, A22-37 [hereinafter cited as MiLR.Evid. 608 analysis]. Federal. Rule of Evidence 608(a) does not require as a prerequisite to the admission of lay opinion testimony concerning a witness’ character for truthfulness that the person expressing the opinion have a long acquaintance with or recent information about the witness. United States v. Watson,

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United States v. Williams, 23 M.J. 792, 1987 CMR LEXIS 56 (usarmymilrev 1987).

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